In his statement yesterday the DPP [Keir Starmer QC] said although the evidence gathered did not meet the threshold necessary for criminal proceedings there was evidence upon which a jury could conclude that Green “aided or abetted” what was a clear breach of public duties by Galley, in leaking the information. Starmer said the breach of duty did cause “damage” to the proper functioning of the Home Office and that the unauthorised leaking of restricted and/or confidential information was not beyond the reach of the criminal law.
Given that a pattern of leaks had been established by the permanent secretary of the Home Office, Sir David Normington, Starmer said: “It was inevitable that a police investigation would follow.”

On the same day, the Guardian’s editorial comment on Mr Galley, the home office mole who has admitted supplying most (but, interestingly, not all) of the stolen information to Mr Green, is also worth pondering:

Ms Smith and her top officials had been angered by the steady stream of leaks which eventually turned out to be flowing through Mr Green. They had a right to be. The young official who set it flowing, Christopher Galley, seems to have had motivations that went beyond any desire to expose specific wrongdoings; he has a track record of ambition within the Conservative party. Aside from ministerial blushes, the chief effect of much of the material he released was to increase anxiety about immigration. With access to an extraordinary range of sensitive papers, he had – as the director of public prosecutions said yesterday – the potential to damage good governance.

I have written about this affair in two earlier posts, and in responses to comments on them (here and here), and there’s no need to repeat all that now: nothing that has happened since causes me to change my views as expressed then. But a couple of points are worth reflecting on before we are all deafened by the crowing of Damian Green in his understandable but entirely bogus claim to have been ‘vindicated’: bogus, because the DPP’s decision in no way confirms Green’s self-serving pretence that in maintaining contact over a long period of time with a spy close to the heart of government in order to obtain stolen information with which to attack it, he was “only doing his job”.

First, it’s been instructive to see how the combined forces of two powerful vested interests have been brought to bear to protect Mr Green (and, incidentally, his home office mole). Opposition MPs and disaffected government back-benchers share a vested interest with journalists and their newspapers and magazines in encouraging unauthorised and generally illegal “leaks” of information that the government of the day for whatever reason doesn’t want to make public, or doesn’t want to make public at that particular moment. There’s an important distinction here between (1) leaks designed to expose corrupt or otherwise illegal and deceitful behaviour by ministers, and (2) leaks designed purely to embarrass the government and benefit its critics. Even the former kind can be justified only if the procedures laid down for reporting such illicit behaviour by government have been followed; and if they have, the law now affords considerable protection to the whistle-blower. The latter kind of leak can never be justified: it constitutes a flagrant breach of trust between the government and its paid employee, a betrayal of the loyalty owed by an appointed official to his or her elected minister, and an action liable, in the DPP’s words, to damage the proper functioning of the government in general and of the department whose information has been stolen in particular. Contrary to Mr Green’s protestations, his mole’s stolen documents appear from the evidence now available to have fallen into the latter (unjustified) category, not the first.

Secondly, an overlapping vested interest, combined with the vested interest in encouraging and seeking to legitimise leaks, helped to obscure the real issue at stake in Damian Green’s behaviour — namely, the right and duty of government to protect its own information from unauthorised and untimely publication. The second vested interest was that of members of parliament in protecting themselves from stringent investigation by the police. Even though MPs had to acknowledge that they could not invoke parliamentary privilege to claim immunity from investigation of a possible crime, they nevertheless raised an enormous storm of protest over the arrest of Mr Green and the search of his papers and computers in his parliamentary office. On the face of it, both of these were probably justified. The police were perfectly properly seeking to establish what information had been clandestinely leaked to Mr Green: whether any of it had been classified Secret (or above), whether any of it touched on matters of national security, and to what extent, if any, Mr Green had actively or implicitly encouraged his mole to continue his acts of treachery over at least two years. If any security-sensitive and highly classified information had been passed to Mr Green, there would have been an obvious risk that it would be destroyed had Mr Green received advance warning of the impending search. That was the unacceptable risk of inviting Mr Green down to the station for a polite chat over a coffee instead of formally arresting him. As for the search of his office files and computers, the police had not sought or obtained an ordinary search warrant, but they did have the explicit permission of the Serjeant at Arms, the senior parliamentary official in charge of security, for the search, and they presumably knew that the Speaker had been either informed or consulted in advance and that he had raised no objection. It seems obvious that this, in the special circumstances of a police search inside the Palace of Westminster, was a much more authoritative form of permit than an ordinary search warrant would have been.

But whatever the rights and wrongs of the arrest and the search, the unfortunate fact remains that the real issue was almost completely drowned out by the hullabaloo over the arrest of Green and the search of his offices, a hullabaloo raised by MPs outraged that one of their number, suspected of having committed an offence, had been treated by the police in exactly the same way as any member of the public would have been treated in similar circumstances. (It’s worth bearing in mind, too, the DPP’s explicit judgement that given the series of leaks over such a long period, it was “inevitable” that the police should have been called in.)

Against such a background of clamour by double vested interests, vociferously backed by most of the country’s parliamentarians and almost the whole of the country’s press, it was entirely predictable (and widely predicted) that the Director of Public Prosecutions should decide not to go ahead with charges against Damian Green or his mole. But it’s unfortunate for the government, and potentially damaging to the cause of good government, that the DPP’s decision is being almost universally interpreted as a leakers’ charter. Henceforth any minor (or senior) official with a personal grudge against his minister, or motivated by his personal political views or by a desire for either the excitement of clandestine activity (“I’m more important than I might seem”), or for fame or even fortune, will feel free to decide for himself what official information should be passed over to the public domain, in what form and on what timing, regardless of the considered policy and views of elected ministers. Appointed officials will believe themselves quite free to substitute their own judgement for those of their elected ministers as to what should be given to the government’s political adversaries or to the national press, and what should be withheld.

If and when Mr Green and his front-bench colleagues find themselves sitting on the government benches in, probably, just about a year’s time, they might begin to realise what they have done. But you may be sure that if so, they won’t admit it.

Post-script: Many will disagree with some, or all, of the judgements made in this post. Most of these have been exhaustively debated in comments on my two earlier posts on the subject, cited (with links) above; and I have responded to most of them there. There’s little or no point in repeating those debates here. Dissenters can be assumed to persist in their dissent. Comments on genuinely new aspects of the case are, however, most welcome, as always.

Brian

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8 Responses

‘We are offering no deals,’ the officer said. ‘You can get life imprisonment for this.’
“This is an outrage. Those responsible will be severely punished.”
Whoops, wrong page. Take 2.
“You flatfoots will never pin that rap on me. You got squat. Hear me, cop?”
This is pure theatre. Keystone Kops meet the Godfather.
Let’s see: Destroy relationship between police and public. Think we can safely check that.

Brian writes:I don’t believe there was much of a benevolent relationship between police and public left to destroy. Look at the behaviour of the police and some of the demonstrators during the G20 summit (admittedly nothing directly to do with Mr Damian Green MP and his mole, but the police are the police). This specially aggressive police unit, a sort of gendarmerie, obviously behaved extremely badly, but so did some of the demonstrators. The ability of passers-by and demonstrators to film events with small mobile phones has permanently changed the old situation where, once in court, it was the protester’s word against that of the police, and judges and magistrates steered towards the police. The old days of the courteous bobby on the beat, happy to give you directions or tell you the time, are gone forever with the death of deference to authority. New Labour, in its blind panic about terrorism, has given the police fantastically wide-ranging powers, and any group given vast powers is inevitably going to waste no time using them, even if not in the situations for which they were intended. The police now drive around at appalling speeds, sirens blaring, in super-charged cars, modelling themselves on the NYPD as portrayed in lurid TV programmes. When facing a crowd they are accompanied either by enormous horses or savage dogs, and brandish massive weighted truncheons. The kind of person who wants to be a policeman (and is willing to remain at constable level) is almost by definition the kind of person who will punch your lights out if insulted or feeling threatened: more sophisticated coppers get rapidly promoted into managerial office jobs, leaving the dregs to maintain order in the streets. Not only have the public lost confidence in the basic decency of the police: the police have lost confidence in the basic decency of the public (especially if the public facing them are angry demonstrators, Muslims, black teenagers, football maniacs, environmentalists red in tooth and claw, or citizens driven mad by their suspicions of GM crops). The old days are gone forever and it’s futile to whine about the need to get them back. It’s no wonder that Damian Green’s angry — and wholly unwarranted — complaints about the way the police treated him ring such loud bells with so many people, mostly predisposed to think the worst of the police, whatever they do.

“As an Englishman abroad I am horrified and sickened. Even the robust CRS here in France do not show such a lack of discipline. No wonder people are so angry. I’m ashamed to be associated by nationality to such a police force.”

The CRS, of course, are the heavy mob of French policing; they are not the regular gendarmes.

As I have pointed out on my own blogs, the policy of kettling would would unquestionably be utterly unconstitutional in Spain (and in the land of the gendarmes too, I imagine).

The ability of passers-by and demonstrators to film events with small mobile phones …

So long as they are willing (and permitted) to break the law by doing so. Photographing red buses in London has now become a high-risk activity.

The ability of passers-by and demonstrators to film events with small mobile phones has permanently changed the old situation where, once in court, it was the protester’s word against that of the police, and judges and magistrates steered towards the police.

Brian,
How right you are.
I spent years trying, often unsuccessfully, to defend punters charged with this type of offence. The court rarely sympathized with the defendants. Magistrates often saw the officers give evidence many times. In a beauty contest between a defendant, often drunk, and a professional witness in a neatly pressed uniform with a police medal ribbon, there was usually only winner!
Too many times I left court with little doubt the police evidence was simply fabricated. I would seek cctv footage, but strangely enough, the camera was never pointing at the incident.
What used to amaze me was the trivial nature of the offence(s) in which the police used these tactics.
t

Brian writes:Thanks, Tony: welcome confirmation from an experienced former solicitor. I’m slightly surprised that this relatively new phenomenon hasn’t attracted more notice and discussion, especially in the context of new legislation which appears, on the face of it, to make it an offence to photograph or film a policeman (but not for a policeman to photograph or film a perfectly innocent citizen going about his lawful business)!

I agree with you, Brian, that leaking by civil servants should neither be encouraged nor connived in by opposition politicians. HoweverI cannot allow your one-sided analysis of the DPP’s comments to go unchallenged. His decision not to prosecute either Green or Galley was in large measure due to his conclusion that the leaked documents were in part already in the public domain and that their release did not pose any threat to national security. This being so, the question remains as to why there was so much pressure for a police investigation into Damian Green’s role. it is inconceivable that the Permanent Secretary would have called in the Police without the agreement of the Home Secretary. It is now clear that the main motive of the Government was to try to annul the embarrassment of our immigration system being yet again revealed to be inadequate and ineffective -though this was hardly an earth-shattering suprise. Also with the precedent of Ponting in mind, Keir Starmer would be bound to conclude that no jury would be likely to convict either Green or Galley for having provided to the public information that the Government would have preferred to keep secret.
Noting that your blog has gone off on the G20 policing tangent, I would suggest that it would be more logical to link the two Damians. The disclosure of the Mc Bride emails says even more about the sleaze-ridden authoritarian nature of Gordon Brown’s coterie than any over- zealous enforcement of public order by the MET. But perhaps this is not a subject you want to tackle?

Brian writes:Thanks, Jeremy. I find very little to disagree with in your comment, and even less that contradicts what I have written about the Damian Green affair. I pointed to the sections of the DPP’s statement which have been largely ignored (for obvious reasons) by the blogosphere and the MSM; hence the one-sidedness of what I wrote. I never claimed to be offering a balanced or comprehensive account of that statement. The DPP himself commented that against the background of systematic leaking of home office material over at least two years, and the understandable inability of the home office to track down the offender using its own limited resources, the calling in of the police was inevitable, regardless of the sensitivity of the material then known to have been leaked (investigation might have revealed that other material of much greater sensitivity had also been leaked). There seems no reason to attribute disreputable motives to the decision to call in the police. The DPP’s statement makes it very clear that the decision not to prosecute Mr Green or his home office spy doesn’t mean that no offence had been committed.

I have written at tedious length about the McBride-Draper smear e-mails affair and answered numerous comments on my blog posts on the subject, so I can’t accept your accusation that it’s not a subject I “want to tackle”. You can find links to the relevant blog posts in the right-hand panel of my blog.

Many thanks for your reasoned response. You have hit the nail between the eyes on a couple of points. Specifically:
-Mobile phone cameras mean the police cannot fall back on standard operating procedure. Namely, claiming the static surveillance cameras malfunctioned (what, all of them?), and then lying through their teeth if the case gets to court.
-Only the most violent, knuckle-dragging cop remains a lowly constable for an extended period. I’ll buy that. Do you recall the moment when Bedfordshite Police pulled over the actors in “Road to Guantanamo” at Luton Airport? Returning from Berlin after collecting their Silver Bear award, they must have thought they were back in character.
“Did you become an actor to further cause of Muslim extremism?”
“Did you become a police officer to further your career of schoolyard bully, Constable Flashman?”
May I suggest you view, “Shocking police brutality on war hero Mark Aspinall” on YouTube? This will not be a waste of your time.
I appreciate how difficult it must be for you after a lifetime supporting authority, with a “My country right or wrong” mindset. But you really are going to have to choose sides soon.

Brian writes:I have no illusions at all about the way some police have been behaving recently — and, I suppose, the way some of them have always behaved. But even the most cynical observer of police brutality and excess is likely to be shocked by the video clip you mention, showing the savage and totally unwarranted attack on Mark Aspinall: everyone should steel themselves to watch the whole of http://bit.ly/Zahv4 (it’s quite short). Thank you for mentioning it.

I’m relieved to see from the report in The Times, among other papers, that Aspinall’s outrageous conviction for assaulting the three policemen who in fact assaulted him has been overturned on appeal (as a result of the video), and that the three policemen are “under investigation”. It’s a deeply sobering thought (no pun intended) that if it had not been for the video record, Aspinall would have been lumbered with a three-month suspended prison sentence, ordered to serve 200 hours community service and made to pay the officers £250 ‘compensation’. The lies initially told by the policemen in accusing Aspinall of assaulting them seem to me almost as wicked as the fearful injuries that they inflicted on him in their completely unprovoked attack. It’s altogether an appalling story.

There’s an excellent article in today’s Guardian by a former senior policeman about some of the things that have gone terribly wrong recently in policing in relation to changes in society — http://bit.ly/kAfG2. It echoes some of the things that I tried to say earlier, including the insightful point that whereas the public has largely lost confidence in the police, the police in turn have largely lost confidence in the public, which they increasingly see as hostile, violent and threatening — and behave accordingly.

As for ‘choosing sides’, I’m pretty clear, anyway in my own mind, whose side I’m on, and I don’t regard my life as having been spent “supporting authority”; as often as not I tended to challenge it. Working as a professional exponent and defender of government policy (much as a lawyer seeks to put his client’s case in the most favourable possible light regardless of his own private views), and trying to spread the word in overseas countries about the positive things about Britain (which are many), is not at all the same thing as always “supporting authority”, although from the outside they might seem alike.

Mobile phone cameras have most decidedly put Plod on the back foot. An assault on a protester can be put on YouTube and gone round the world before Constable Flashman gets back to the station. No need to rely on surveillance cameras, which always seem to malfunction when you need them most. Easy to see why photographing a police officer was made illegal. They don’t like it up um.

[…] and the arrest of Damian Green (on which my similar views are set out at rather greater length here and here), whatever we might think of his dubious analysis of the wretched Constitutional Reform […]